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Porter v. State8/24/1999
indictment in accordance with [Section 99-7-21]." Id. See also Bolen v. State, 309 So. 2d 524, 525 (Miss. 1975) (holding that failure of indictment to specify in which of the two judicial districts of Panola County the crime occurred "was a formal defect and could be amended, and being amendable the defect [could not] be raised for the first time in this Court").
. Conversely, an indictment which does not initially charge a crime cannot be amended. In Brewer v. State, 351 So. 2d 535, 536 (Miss. 1977), the grand jury indicted the appellant for the delivery of a controlled substance, preludin. Preludin was not a controlled substance, although it contained phenmetrazine, which was a substance listed in Schedule II of controlled substances found in Miss. Code Ann. § 41-29-115. Id. The appellant neither demurred nor otherwise challenged the sufficiency of the indictment, but the State's evidence established that preludin contained phenmetrazine. Id. When the State rested, the appellant moved "to dismiss on the ground that no cause of action was stated by the indictment since it did not charge him with delivery of a substance which was on the statutory schedule." Id. The trial court denied appellant's motion and instead required the State to amend the indictment to state that preludin contained phenmetrazine. Id.
. The supreme court asserted, "Appellant contends on appeal that the indictment was not amendable because it did not charge a crime in the first instance. We agree." Brewer, 351 So. 2d at 536. The court explained that Section 99-7-21 "applies only to matters of form and not matters of substance." Id. Compare Rule 7.09, which reads, "All indictments may be amended as to form but not as to the substance of the offense charged." URCCC 7.09. The Brewer court reversed the appellant's conviction and remanded him to the custody of the sheriff to await the action of the next grand jury. Id. at 537.
. In Copeland v. State, 423 So. 2d 1333, 1336 (Miss. 1982), the grand jury indicted the appellant for selling "a quantity of methylenedioxy amphetamine, a controlled substance." Methylenedioxy amphetamine, as distinguished from "3, 4 methylenedioxy amphetamine" was not then a controlled substance. Id. The State argued that the omission of the numerals "3, 4" was a matter of form and therefore amendable under Section 99-7-21. Id. Like the State in the case sub judice, the State argued that Copeland had waived the omission because he filed no demurrer to the indictment. Copeland, 423 So. 2d at 1336. The supreme court held that "the indictment failed to charge a crime and is therefore void." Id. at 1337. As it did in Brewer, the supreme court remanded Copeland to the custody of the sheriff to await the action of the next grand jury. Id.
. For other cases in which the Mississippi Supreme Court has found the defect in the indictment to be a matter of substance rather than a matter of form and thus not waived by the defendant's failure to demur to the indictment, see Watson v. State, 291 So. 2d 741, 743 (Miss. 1974) (holding that indictment's failure to specify the felony of which appellant had been charged where crime was the possession of a firearm as a convicted felon was not a formal defect which could be corrected by amendment so that appellant's failure to demur to the indictment did not waive the defect); Meyers v. State, 193 So. 2d 728, 729 (Miss. 1967) (holding that indictment's failure to name the owner of the property allegedly embezzled was not a formal defect that could be corrected by amendment so that the appellant's failure to demur to the indictment did not waive the defect).
34. Whether an indictment is fatally defective is "an issue of law and deserves a rel
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